“Here’s a new post.” (cleaned up)

I have tried for the better part of a week to convince myself that I needed to write something about the most recent ABA Formal Ethics Opinion which was released in February 2021 and which attempts to explain what “materially adverse” means in the context of ABA Model Rule 1.9 (and Model Rule 1.18). I really have. But – and I’m probably wrong – I just can’t manage to feel like Formal Opinion 497 merits an entire post as it all just reads like an effort to continue to try to justify something that was just a mistake – an easily understandable mistake to have made but a mistake all the same.

Model Rule 1.9 really shouldn’t say “materially adverse” if what it means is just the same thing as directly adverse. As the opinion explains in footnote 8, during a past process of revising the rules, someone figured this out but that only ended up with a sentence or two being deleted that the ABA had relied upon in the past instead of some affirmative effort to explain in the comment what it actually means in terms of things in addition to direct adversity. This opinion offers up a lot of words but never really manages to identify some way of truly understanding what would be materially adverse but that wouldn’t also be directly adverse. Worse yet, the opinion is even more frustrating for me in Tennessee because our rules define “material or materially” to mean something specific and something that specifically doesn’t work so well as a modifier for the word “adverse.” RPC 1.0(o) in Tennessee reads:

“Material” or “materially” denotes something that a reasonable person would consider important in assessing or determining how to act in a matter.

So, instead of trying to make a whole post about that, let’s add an entirely different topic into the mix. A topic that speaks to a version of me that died a long time ago, the citation format nerd. (1995-2005. RIP)

You may have heard a little bit of discussion among lawyers of the big news coming out of a recent United States Supreme Court opinion authored by Justice Thomas. No, it wasn’t who won and who lost the case which involved aspects of the Federal Tort Claims Act. The big news was that the Court embraced an upstart approach to parenthetical citation, the use of “(cleaned up)” to replace the tedious combination of items such as internal citations omitted and emphasis added or similar items required to be said when you are quoting language from a case that is also quoting language from one or more other cases and also possibly citing to some other authority and that prior authority might also have been referring to some other precedent. [If you really want more insight into the history of the “(cleaned up)” movement you can go here.]

Justice Thomas cemented his legacy as decidedly not an originalist when it comes to legal citation by writing the following in the unanimous opinion issued by the Court in Brownback v. King:

Under that doctrine as it existed in 1946, a judgment is “on
the merits” if the underlying decision “actually passes directly on the substance of a particular claim before the
court.” Id., at 501–502 (cleaned up).

So why do I even think this works at all as fodder for ethical discussion? Well, ellipses have long been recognized as an appropriate way of omitting words from a quote in terms of citations. And, at some point, a lawyer thought it was okay to manipulate a quotation in a case cite to make the citation seem favorable when it wasn’t by omitting one or more words that changed the meaning and using ellipses. Bad idea all the time. And the kind of thing you will get admonished or disciplined for when you get caught.

So, you know it is going to happen, right?

A lawyer is going to try to use (cleaned up) to make a quote seem different and more favorable for their position than is the reality of the quoted authority.

Please don’t be that lawyer.

(P.S. I’m just a week or so away from the Sixth Anniversary of this here blog and about 10 days away from my quarantineversary. As to the blog, I’m looking forward to many more years. As to the pandemic, I’m really ready for this to be over.)

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